Monday, 15 June 2015

30 second take-away:1. State aid rules are there to prevent unfair competition in the EU2. In certain instances, if a tax authority gives a particular advantage, benefit or concession to an individual taxpayer, that can be unlawful state aid. 3. You can expect there to be significant changes in preferential tax schemes for intellectual property in the EU, called “patent boxes”.

AND NOW FOR YOU TAX ENTHUSIASTS:

The European Commission defines State Aid as:

- any aid granted by a member state or using state resources

- in any form at all

- that distorts or threatens to distort competition

- favours certain undertakings or the production of certain goods

- affects trade between member states

- becomes incompatible with the internal market.

Traditionally, the European Commission has looked at direct funding of projects. One recent example might be Hinkley power station in the UK. The project needed the European Commission’s approval before the government could provide any funds.

More recently, the Commission has used State Aid law to review agreements between revenue authorities and multinationals. Ireland and Luxembourg have been particularly under the spotlight. They are accused of providing State Aid to Apple and Amazon, through forgone tax revenues.

Draft Notice on State Aid referring to Article 107(1) The Functioning of the European Union

In 2014, The European Commission issued a Draft Notice on State Aid relating to Article 107(1) TFEU.

In that, the Commission made clear when member states could give State Aid to individuals and organisations.

The important sections are:

- the existence of an undertaking

This part clarifies who the recipient of State Aid is. In other words, the “undertaking” is an entity that carries out an economic activity.

Here are certain cases where the Commission would not consider you recipient of State Aid:

* If you hold shares, even a majority shareholder in such an undertaking

* If the State supplies public goods and services - in particular Health, Education, Research and Infrastructure

* If the State administers Solidarity schemes. These relate to welfare and social security contributions.

- the imputability of the measure to the State

This explains how a State grants a benefit to an undertaking. For example, it could be direct funding from a regional development agency to a business.

- its financing through State resources

Alternatively, this could include indirect use of state’s resources. You might have state aid if a public education authority provides free start up advice for new businesses or social enterprises.

- the grant of an advantage

This is when an undertaking receives an economic benefit outside of normal market conditions. For example, you have a private train operator that receives a state subsidy to compensate for regulated ticket prices. Because the private train operator does not control the ticket pricing policy, it can receive this subsidy and it would not be against EU State Aid rules.

- the selectivity of the measure

In this part, if a State provides support and it favours only certain companies in a business sector, that would be unlawful This section also addresses Fiscal State Aid. I will discuss this more detail later.

- its potential effect on competition and trade within the Union.

Governments must ensure that if they provide state assistance, all undertakings in the Common Market operate on an equal footing.

FISCAL STATE AID

The Draft Notice highlights nine particular areas which give rise to State Aid under EU legislation:

1. Cooperative societies

2. Undertakings for Collective Investment

3. Tax amnesties

4. Tax settlements

5. Administrative tax rulings

6. Depreciation/amortisation rules

7. Flat-rate tax regime for specific activities

8. Anti-abuse rules

9. Excise duties

From that, we conclude that Fiscal State Aid is when a government establishes a tax scheme or relief. By doing this, it gives a particular advantage or concession to an individual taxpayer.

PROBLEMS WITH THE DRAFT NOTICE

The Draft Notice does not cover every single tax measure that EU member states provide. However, it does give general guidance in paragraph 157:

“Member States are free to decide on the economic policy which they consider most appropriate and, in particular, to spread the tax burden as they see fit across the various factors of production. Nonetheless, Member States must exercise this competence consistently with Union law.”

It refers to the case C-182/08 of Glaxo vs Munich tax authority at the European Court of Justice. German law had set a limit on a non-resident shareholder’s right to deduct a loss in value of shares.

The court ruled that German tax law was not against the principle of free movement of capital and freedom of establishment.

While this case law is useful, it doesn't help when you consider specific tax relief schemes. In fact, if a government wants to introduce any new tax measures, it now requires permission from the European Commission. The approval process can take up to 2 years.

For existing schemes, the Commission has to notify the member state. The member state replies and if the Commission does not accept the findings, then the Commission will begin a formal investigation procedure.

If State Aid is judged unlawful, then the recipients must repay all the tax assistance received with interest.

EU PATENT BOX SCHEMES

In 2008, the Commission wrote to the Spanish Department of Foreign Affairs about the country’s Patent Box scheme. The Commission took no further action. This was because the Spanish tax authority provided information that the tax incentive was:

- open to all Spanish corporate taxpayers

- beneficial to the economy since businesses could spend more money on research

- not a selective advantage

- working alongside General Anti-Abuse Provisions.

As a result, the Spanish Patent Box scheme did not constitute Fiscal State Aid.

However, in December 2013, ECOFIN, the body of economic and finance ministers asked the EU Code of Conduct Group for Business Taxation to look into the patent box schemes in EU states.

The issue was whether the schemes were consistently equal across member states.

The Group reported back in December 2014. They considered whether the Intellectual Property schemes in the EU went against criterion 3 of the Code of Conduct.

That is, was the scheme a tax incentive which produced no real economic activity or substantial economic presence?

To assess this, they adopted a “modified nexus approach” in line with BEPS action 5 - Counter harmful tax practices. Germany and the UK proposed this approach in November 2013.

In effect, multinationals will use the costs to create the Intellectual Property to define the extent of income generated from that Intellectual Property.

The Group found that the member states’ IP schemes did not comply with this approach. They recommended that:

- member states should modify their patent box schemes

- close their existing schemes to new entrants by 30 June 2016

- taxpayers in current schemes should move over to the new schemes by 31 June 2021.

CONCLUSION:

If I could give some advice to the Commission, that would be:

- Devolve the power to EU member states to approve State Aid for new schemes.

The current system is clearly taking too long. Unemployment is still high in EU member states. They need to introduce tax incentives now for entrepreneurs to create jobs. The Commission could still monitor how member states approve new schemes through a committee.

- If existing schemes are judged against State Aid rules, limit any tax repayments to 3 years only.

Taxpayers have asked for rulings from tax authorities before they planned their tax activities. At the time, they believed that these schemes were legitimate.

Companies do need legal certainty. And three years would also be consistent with assessment periods for tax audits in the EU.

Sure, you could improve the way the EU looks into cases of state aid. In the end, I believe the Commission is right to use State Aid rules to investigate preferential regimes and address aggressive tax avoidance.

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REFERENCES:

News - State Aid Approval for UK power plant https://www.gov.uk/government/news/state-aid-approval-for-hinkley-point-c-nuclear-power-plant

Two states enter into a double tax convention to avoid double taxation. Because of domestic rules in each state, a multinational could find itself non tax resident in both states. And so, it avoids paying tax in either state. This is called double non-taxation.

Treaty shopping

That’s when a multinational company uses a third country with a more favourable tax treaty to reduce its tax charge. It places a third country between its principal tax residence and the source country. It may structure its operations around this third country. By doing so, it aims to reduce the taxable income in its home country.

Transactions intended to avoid dividend characterisation

That’s when a company exploits how a tax treaty defines a certain income type to avoid domestic tax legislation. A tax treaty may classify a dividend payment as a long-term capital gain made on the sale of shares. This happens in New Zealand. In some cases, you don’t have tax on the capital gains on the sale of shares.

Splitting-up of contracts

You may have companies that break down major projects into several smaller contracts. Each mini-contract lasts fewer than 12 months.

Most tax treaties consider a business a permanent establishment if they have operated for at least 12 months.

The company can claim to have no permanent establishment at all in that state and so, escape tax.

The project will also address this example of treaty abuse in Action point 7 - Prevent the artificial avoidance of PE status.

Why is treaty abuse a specific concern for BEPS?

This is because it leads to double non-taxation, using a third country that is not related to the multinational’s operation.

Now, you have entities that do not allocate the correct income in line with their business activity in a country. For example, in the US alone, a Congressional Report this year estimated that multinationals avoid $100 billion in tax in 2014.

How has the BEPS plan progressed in Action 6 so far?

The OECD published a discussion draft on 21 November 2014. This draft provided potential solutions, in particular:

Changes to treaty provisions – statement of intent

States who are in the tax treaty should write a clear statement at the beginning of the treaty.

This would state that beyond avoiding double taxation, both states intend to:

- avoid tax avoidance or tax evasion.

- non taxation opportunities, including through treaty shopping.

Limitation of Benefits

The USA is an example which applies a “Limitation of Benefits” clause in its tax treaties. You set out criteria when an entity can make use of tax advantages. For example, you may have criteria according to:

- Take into account the economic reality of a transaction, not just its legal form.

With this, the OECD aims to stop artificial arrangements which have no apparent commercial or investment reality.

Principal Purpose Test

The principal purpose of a tax treaty is to make sure that a person or entity is not taxed twice: - on the same income on two taxpayers (economic double taxation) - on same taxpayer, but by two different states (juridical double taxation) A transaction or arrangement is artificial.

It goes against the original purpose of the tax treaty. Then a revenue authority can deny benefits of that treaty. How this test applies relies heavily on how you interpret the treaty. This would tackle types of abuse, such as conduit financing arrangements.

Conduit financial arrangements.

This is an entity that issues securities such as short term loan notes. It later uses the proceeds to invest in long term assets.

One example are so-called Dutch Special Purpose Entities. A multinational may use this to issue corporate bonds to the parent company or to foreign investors. Under EU law, if a Dutch Special Purpose Entity makes interest payments to foreign bondholders, these payments are exempt and will not incur any withholding tax.

If you applied a Principal Purpose Test, the revenue authority may deny the benefits of the treaty. They could apply withholding tax on the payments. That may be true if the funds invested flow out of the entity, leaving few earnings in the Netherlands.

However, you could have funds which genuinely represent foreign direct investment in the country. So, it is not clear whether a genuine investment would fail the Principal Purpose Test. You can see how the test does become highly subjective.

The BEPS Action plan proposes:-

(i) the Principal Purpose Test.

(ii) a combination of the Principal Purpose Test and the Limitation of Benefits test.

(iii) a Limitation of Benefits test, backed up with some parts of the Principal Purpose Test.

Ernst & Young echoed concerns about the Principal Purpose Test, in their public comments on this discussion draft.

They added: “This test is vague and would add uncertainty to the treaty by introducing a subjective standard that would be difficult to evaluate and administer in practice because it is dependent on the intent of the taxpayer.”

In their reply to the same public consultation, the British Accounting Association, ICAEW, voiced concerns on the Limitation of Benefits provisions. A trust in a common law country could be denied benefits if they invest in a civil law country.

This is because the trust, whose main purpose to invest funds, may be considered a partnership. You then might have a conflict in interpreting who qualifies for these benefits in a tax treaty. The public comments generally voices unease of unintended consequences.

Mainly, it highlights denying treaty benefits when there is a legitimate business reason.

As I write this, the OECD will publish a revised discussion draft for BEPS Action 6 on 22 May. The public can scrutinise this and voice their concerns for 30 days.

CONCLUSION:-

The Action plan and its aims to prevent treaty abuse lack detail. You can only sense this from the feedback from the public consultation. I would like to see more practical examples of how the BEPS plan would apply these tests. “Preventing treaty abuse” also refers to other Action plans 2, 4, 5, 8, 9 and 10.

Why not break down this and include them in other Action points? In part C of the discussion draft, you have a section that deals with “permanent establishments located in third States”.

You could have a better focus if you include this in Action 7 - preventing the artificial avoidance of permanent establishment status.

Technicalities aside, it is actually positive that the OECD is consulting widely. You have comments not only from tax professionals but also business sectors.

You could equally argue that these groups are interested in keeping the current situation. You do not have much representation from ordinary global citizens.

The complex, technical and academic nature of the document seem far removed from the man in the street. Ultimately, this could fuel misunderstanding and resentment with the general public.

4. Example: the BEPS project has a plan to counter multinationals deducting too much interest from their tax bill.

5. Outside the project, countries have already ploughed ahead with their own steps to combat tax avoidance.

6. The BEPS project is off to a good start, but will tomorrow's economic reality overtake the new tax landscape?

AND NOW FOR YOU TAX ENTHUSIASTS:

In November 2012, political leaders at the G20 tasked the OECD to draft a plan to combat international tax avoidance. They were responding to public mood and that is how the BEPS project started.In her lecture on International Taxation, Manal Corwin reflects on this public outcry. The debate in the media has not helped. Sometimes, the media and the public have misunderstood the debate on tax avoidance. Tax planning is a legitimate way to reduce a company's tax bills. Tax is a cost to a business like any other. And a company has a duty to get the best return on investment for its shareholders. Meantime, this has caused untold damage to multinationals’ reputation. In the long term, this cannot be good for anyone. Recent developments in the BEPS projectIn 2013, the G20 countries and the OECD approved a 15 point action plan to tackle BEPS. I will now focus on one particular issue of interest payments. At present, you have a situation where a parent company funds its subsidiaries through loans. The interest received by the parent on the loan is treated as non-taxable in one country. In the other country, the interest charge is fully deductible. So you have a situation, where the interest is not taxed in either country.Action Plan 4 of the BEPS project addresses this. You already have existing rules in place such as:- thin capitalisation rules - you have a deduction limit for interest based on the company’s mix of debt and equity. If the interest charge exceeds a particular ratio of debt-to-equity, it will not be deductible. - caps on interest deduction - you might have a deductible interest limit of 30% of a company’s operating profit. - limit on the interest rate on inter-company loans - for example in France, the limit is currently at 2.72% at 30 March 2015.The action plan proposes a so-called formulary approach to interest charges. A multinational would calculate a group-wide interest charge according to a third party interest charge. It will then allocate this to each subsidiary.

You could calculate the allocation with a financial ratio, such as interest cover. You could calculate an allocation by comparing the subsidiary’s earnings or asset value compared to the entire group. While the group wide interest charge is at arm’s length, the interest charge a subsidiary incurs may not. For example, the base interest rate in the Euro-zone is close to 0. Interest rates in Brazil are currently at 13.25 %. A group wide interest charge could actually allow a company to deduct more interest where the interest rate is low. Where the interest rate is high, the company deducts far less than it would normally do. How have other countries tackled tax avoidance? While the BEPS plan continues, countries have taken their own steps to combat tax avoidance: - UK’s diverted profit tax on large companies - it’s a new 25% tax rate on profits diverted from outside of the UK.- Belgium’s “fairness tax” - in 2014 - Belgium introduced this to counter generous tax incentives from its “notional interest deduction” and carry forward losses. These tax incentives could effectively reduce a company’s taxable income to nil. - Minimum Alternate Tax - you already have this tax in certain jurisdictions, such as in India. They are aimed at large corporations. The tax represents a percentage of adjusted accounting profit. You then compare this to the actual tax liability. Whichever is higher becomes the tax bill. However, the tax authority gives a tax credit. That represents the difference between the minimum tax paid and the normal tax liability. The company can offset this credit against its tax liability in future years. Is the BEPS plan effective? The BEPS plan is a good starting point. It contains many measures and it has consulted widely with governments, the tax profession and the business world. It does begin to address some of the public’s concerns that multinationals are not paying their fair share of tax. However, implementing these measures remains tricky. The measures will naturally take years to bring in, given the number of countries and tax treaties involved. By that time, the situation of the global economy will have outpaced the tax landscape well after the BEPS project has ended.

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REFERENCES:-

[1] Sense and Sensibility: The Policy and Politics of BEPS by Manal S. Corwin